Convention on Cybercrime
Budapest, 23.XI.2001
Preamble
The member
States of the Council of Europe and the other States signatory hereto,
Considering
that the aim of the Council of Europe is to achieve a greater unity between its
members;
Recognising
the value of fostering co-operation with the other States parties to this
Convention;
Convinced
of the need to pursue, as a matter of priority, a common criminal policy aimed
at the protection of society against cybercrime, inter alia, by adopting
appropriate legislation and fostering international co-operation;
Conscious
of the profound changes brought about by the digitalisation, convergence and
continuing globalisation of computer networks;
Concerned
by the risk that computer networks and electronic information may also be used
for committing criminal offences and that evidence relating to such offences
may be stored and transferred by these networks;
Recognising
the need for co-operation between States and private industry in combating
cybercrime and the need to protect legitimate interests in the use and
development of information technologies;
Believing
that an effective fight against cybercrime requires increased, rapid and
well-functioning international co-operation in criminal matters;
Convinced
that the present Convention is necessary to deter action directed against the
confidentiality, integrity and availability of computer systems, networks and
computer data as well as the misuse of such systems, networks and data by
providing for the criminalisation of such conduct, as described in this
Convention, and the adoption of powers sufficient for effectively combating
such criminal offences, by facilitating their detection, investigation and prosecution
at both the domestic and international levels and by providing arrangements for
fast and reliable international co-operation;
Mindful of
the need to ensure a proper balance between the interests of law enforcement
and respect for fundamental human rights as enshrined in the 1950 Council of
Europe Convention for the Protection of Human Rights and Fundamental Freedoms,
the 1966 United Nations International Covenant on Civil and Political Rights
and other applicable international human rights treaties, which reaffirm the
right of everyone to hold opinions without interference, as well as the right
to freedom of expression, including the freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, and the rights concerning
the respect for privacy;
Mindful
also of the right to the protection of personal data, as conferred, for
example, by the 1981 Council of Europe Convention for the Protection of
Individuals with regard to Automatic Processing of Personal Data;
Considering
the 1989 United Nations Convention on the Rights of the Child and the 1999
International Labour Organization Worst Forms of Child Labour Convention;
Taking
into account the existing Council of Europe conventions on co-operation in the
penal field, as well as similar treaties which exist between Council of Europe
member States and other States, and stressing that the present Convention is
intended to supplement those conventions in order to make criminal
investigations and proceedings concerning criminal offences related to computer
systems and data more effective and to enable the collection of evidence in
electronic form of a criminal offence;
Welcoming
recent developments which further advance international understanding and
co-operation in combating cybercrime, including action taken by the United
Nations, the OECD, the European Union and the G8;
Recalling
Committee of Ministers Recommendations No. R (85) 10 concerning the practical
application of the European Convention on Mutual Assistance in Criminal Matters
in respect of letters rogatory for the interception of telecommunications, No.
R (88) 2 on piracy in the field of copyright and neighbouring rights, No. R
(87) 15 regulating the use of personal data in the police sector, No. R (95) 4
on the protection of personal data in the area of telecommunication services,
with particular reference to telephone services, as well as No. R (89) 9 on
computer-related crime providing guidelines for national legislatures
concerning the definition of certain computer crimes and No. R (95) 13
concerning problems of criminal procedural law connected with information
technology;
Having
regard to Resolution No. 1 adopted by the European Ministers of Justice at
their 21st Conference (Prague, 10 and 11 June 1997), which recommended that the
Committee of Ministers support the work on cybercrime carried out by the
European Committee on Crime Problems (CDPC) in order to bring domestic criminal
law provisions closer to each other and enable the use of effective means of
investigation into such offences, as well as to Resolution No. 3 adopted at the
23rd Conference of the European Ministers of Justice (London, 8 and 9 June
2000), which encouraged the negotiating parties to pursue their efforts with a
view to finding appropriate solutions to enable the largest possible number of
States to become parties to the Convention and acknowledged the need for a
swift and efficient system of international co-operation, which duly takes into
account the specific requirements of the fight against cybercrime;
Having
also regard to the Action Plan adopted by the Heads of State and Government of
the Council of Europe on the occasion of their Second Summit (Strasbourg, 10
and 11 October 1997), to seek common responses to the development of the
new information technologies based on the standards and values of the Council
of Europe;
Have
agreed as follows:
Chapter I – Use of terms
Article 1
– Definitions
For the
purposes of this Convention:
a "computer
system" means any device or a group of interconnected or related devices,
one or more of which, pursuant to a program, performs automatic processing of
data;
b "computer
data" means any representation of facts, information or concepts in a form
suitable for processing in a computer system, including a program suitable to
cause a computer system to perform a function;
c "service
provider" means:
i any
public or private entity that provides to users of its service the ability to
communicate by means of a computer system, and
ii
any other entity that processes or stores computer data on behalf of such
communication service or users of such service.
d "traffic
data" means any computer data relating to a communication by means of a
computer system, generated by a computer system that formed a part in the chain
of communication, indicating the communication’s origin, destination, route,
time, date, size, duration, or type of underlying service.
Chapter II – Measures to be taken at
the national level
Section 1
– Substantive criminal law
Title
1 – Offences against the confidentiality, integrity
and availability of computer data and systems
and availability of computer data and systems
Article 2
– Illegal access
Each Party
shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, the access to the whole or any part of a computer system without
right. A Party may require that the offence be committed by infringing security
measures, with the intent of obtaining computer data or other dishonest intent,
or in relation to a computer system that is connected to another computer
system.
Article 3
– Illegal interception
Each Party
shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, the interception without right, made by technical means, of
non-public transmissions of computer data to, from or within a computer system,
including electromagnetic emissions from a computer system carrying such
computer data. A Party may require that the offence be committed with dishonest
intent, or in relation to a computer system that is connected to another
computer system.
Article 4
– Data interference
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, the damaging, deletion, deterioration, alteration or suppression
of computer data without right.
2 A
Party may reserve the right to require that the conduct described in paragraph
1 result in serious harm.
Article 5
– System interference
Each Party
shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, the serious hindering without right of the functioning of a
computer system by inputting, transmitting, damaging, deleting, deteriorating,
altering or suppressing computer data.
Article 6
– Misuse of devices
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally and without right:
a
the production, sale, procurement for use, import, distribution or otherwise
making available of:
i a
device, including a computer program, designed or adapted primarily for the
purpose of committing any of the offences established in accordance with
Articles 2 through 5;
ii a
computer password, access code, or similar data by which the whole or any part
of a computer system is capable of being accessed,
with
intent that it be used for the purpose of committing any of the offences
established in Articles 2 through 5; and
b
the possession of an item referred to in paragraphs a.i or ii above, with intent
that it be used for the purpose of committing any of the offences established
in Articles 2 through 5. A Party may require by law that a number of such items
be possessed before criminal liability attaches.
2 This
article shall not be interpreted as imposing criminal liability where the
production, sale, procurement for use, import, distribution or otherwise making
available or possession referred to in paragraph 1 of this article is not for
the purpose of committing an offence established in accordance with Articles 2
through 5 of this Convention, such as for the authorised testing or protection
of a computer system.
3 Each
Party may reserve the right not to apply paragraph 1 of this article, provided
that the reservation does not concern the sale, distribution or otherwise
making available of the items referred to in paragraph 1 a.ii of this article.
Title
2 – Computer-related offences
Article 7
– Computer-related forgery
Each Party
shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally and without right, the input, alteration, deletion, or
suppression of computer data, resulting in inauthentic data with the intent
that it be considered or acted upon for legal purposes as if it were authentic,
regardless whether or not the data is directly readable and intelligible. A
Party may require an intent to defraud, or similar dishonest intent, before
criminal liability attaches.
Article 8
– Computer-related fraud
Each Party
shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally and without right, the causing of a loss of property to another
person by:
a
any input, alteration, deletion or suppression of computer data,
b
any interference with the functioning of a computer system,
with
fraudulent or dishonest intent of procuring, without right, an economic benefit
for oneself or for another person.
Title
3 – Content-related offences
Article 9
– Offences related to child pornography
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally and without right, the following conduct:
a
producing child pornography for the purpose of its distribution through a
computer system;
b
offering or making available child pornography through a computer system;
c
distributing or transmitting child pornography through a computer system;
d
procuring child pornography through a computer system for oneself or for
another person;
e
possessing child pornography in a computer system or on a computer-data storage
medium.
2 For
the purpose of paragraph 1 above, the term "child pornography" shall
include pornographic material that visually depicts:
a
a minor engaged in sexually explicit conduct;
b
a person appearing to be a minor engaged in sexually explicit conduct;
c
realistic images representing a minor engaged in sexually explicit conduct.
3 For
the purpose of paragraph 2 above, the term "minor" shall include all
persons under 18 years of age. A Party may, however, require a lower age-limit,
which shall be not less than 16 years.
4 Each
Party may reserve the right not to apply, in whole or in part, paragraphs 1,
sub-paragraphs d. and e, and 2, sub-paragraphs b. and c.
Title
4 – Offences related to infringements of copyright
and related rights
and related rights
Article 10
– Offences related to infringements of copyright and related rights
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law the infringement of
copyright, as defined under the law of that Party, pursuant to the obligations
it has undertaken under the Paris Act of 24 July 1971 revising the Bern
Convention for the Protection of Literary and Artistic Works, the Agreement on
Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty,
with the exception of any moral rights conferred by such conventions, where
such acts are committed wilfully, on a commercial scale and by means of a
computer system.
2 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law the infringement of
related rights, as defined under the law of that Party, pursuant to the
obligations it has undertaken under the International Convention for the
Protection of Performers, Producers of Phonograms and Broadcasting
Organisations (Rome Convention), the Agreement on Trade-Related Aspects of
Intellectual Property Rights and the WIPO Performances and Phonograms Treaty,
with the exception of any moral rights conferred by such conventions, where
such acts are committed wilfully, on a commercial scale and by means of a
computer system.
3 A
Party may reserve the right not to impose criminal liability under paragraphs 1
and 2 of this article in limited circumstances, provided that other effective
remedies are available and that such reservation does not derogate from the
Party’s international obligations set forth in the international instruments
referred to in paragraphs 1 and 2 of this article.
Title
5 – Ancillary liability and sanctions
Article 11
– Attempt and aiding or abetting
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, aiding or abetting the commission of any of the offences
established in accordance with Articles 2 through 10 of the present Convention
with intent that such offence be committed.
2 Each
Party shall adopt such legislative and other measures as may be necessary to
establish as criminal offences under its domestic law, when committed
intentionally, an attempt to commit any of the offences established in
accordance with Articles 3 through 5, 7, 8, and 9.1.a and c. of this
Convention.
3 Each
Party may reserve the right not to apply, in whole or in part, paragraph 2 of
this article.
Article 12
– Corporate liability
1 Each
Party shall adopt such legislative and other measures as may be necessary to
ensure that legal persons can be held liable for a criminal offence established
in accordance with this Convention, committed for their benefit by any natural
person, acting either individually or as part of an organ of the legal person,
who has a leading position within it, based on:
a
a power of representation of the legal person;
b
an authority to take decisions on behalf of the legal person;
c
an authority to exercise control within the legal person.
2 In
addition to the cases already provided for in paragraph 1 of this article, each
Party shall take the measures necessary to ensure that a legal person can be
held liable where the lack of supervision or control by a natural person
referred to in paragraph 1 has made possible the commission of a criminal
offence established in accordance with this Convention for the benefit of that legal
person by a natural person acting under its authority.
3 Subject
to the legal principles of the Party, the liability of a legal person may be
criminal, civil or administrative.
4 Such
liability shall be without prejudice to the criminal liability of the natural
persons who have committed the offence.
Article 13
– Sanctions and measures
1 Each
Party shall adopt such legislative and other measures as may be necessary to
ensure that the criminal offences established in accordance with Articles 2
through 11 are punishable by effective, proportionate and dissuasive sanctions,
which include deprivation of liberty.
2 Each
Party shall ensure that legal persons held liable in accordance with Article 12
shall be subject to effective, proportionate and dissuasive criminal or
non-criminal sanctions or measures, including monetary sanctions.
Section 2
– Procedural law
Title 1 – Common provisions
Article 14
– Scope of procedural provisions
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish the powers and procedures provided for in this section for the
purpose of specific criminal investigations or proceedings.
2 Except
as specifically provided otherwise in Article 21, each Party shall apply the
powers and procedures referred to in paragraph 1 of this article to:
a the
criminal offences established in accordance with Articles 2 through 11 of this
Convention;
b other
criminal offences committed by means of a computer system; and
c the
collection of evidence in electronic form of a criminal offence.
3 a. Each
Party may reserve the right to apply the measures referred to in Article 20
only to offences or categories of offences specified in the reservation,
provided that the range of such offences or categories of offences is not more
restricted than the range of offences to which it applies the measures referred
to in Article 21. Each Party shall consider restricting such a reservation to
enable the broadest application of the measure referred to in Article 20.
b Where a Party, due to limitations
in its legislation in force at the time of the adoption of the present
Convention, is not able to apply the measures referred to in Articles 20 and 21
to communications being transmitted within a computer system of a service
provider, which system:
i is
being operated for the benefit of a closed group of users, and
ii does
not employ public communications networks and is not connected with another
computer system, whether public or private,
that Party
may reserve the right not to apply these measures to such communications. Each
Party shall consider restricting such a reservation to enable the broadest
application of the measures referred to in Articles 20 and 21.
Article 15
– Conditions and safeguards
1 Each
Party shall ensure that the establishment, implementation and application of
the powers and procedures provided for in this Section are subject to
conditions and safeguards provided for under its domestic law, which shall provide
for the adequate protection of human rights and liberties, including rights
arising pursuant to obligations it has undertaken under the 1950 Council of
Europe Convention for the Protection of Human Rights and Fundamental Freedoms,
the 1966 United Nations International Covenant on Civil and Political Rights,
and other applicable international human rights instruments, and which shall
incorporate the principle of proportionality.
2 Such
conditions and safeguards shall, as appropriate in view of the nature of the
procedure or power concerned, inter alia, include judicial or other
independent supervision, grounds justifying application, and limitation of the
scope and the duration of such power or procedure.
3 To
the extent that it is consistent with the public interest, in particular the
sound administration of justice, each Party shall consider the impact of the
powers and procedures in this section upon the rights, responsibilities and
legitimate interests of third parties.
Title 2 – Expedited preservation of stored computer data
Article 16
– Expedited preservation of stored computer data
1 Each
Party shall adopt such legislative and other measures as may be necessary to
enable its competent authorities to order or similarly obtain the expeditious
preservation of specified computer data, including traffic data, that has been
stored by means of a computer system, in particular where there are grounds to
believe that the computer data is particularly vulnerable to loss or
modification.
2 Where
a Party gives effect to paragraph 1 above by means of an order to a person to
preserve specified stored computer data in the person’s possession or control,
the Party shall adopt such legislative and other measures as may be necessary
to oblige that person to preserve and maintain the integrity of that computer
data for a period of time as long as necessary, up to a maximum of ninety days,
to enable the competent authorities to seek its disclosure. A Party may provide
for such an order to be subsequently renewed.
3 Each
Party shall adopt such legislative and other measures as may be necessary to
oblige the custodian or other person who is to preserve the computer data to
keep confidential the undertaking of such procedures for the period of time
provided for by its domestic law.
4 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
Article 17
– Expedited preservation and partial disclosure of traffic data
1 Each
Party shall adopt, in respect of traffic data that is to be preserved under
Article 16, such legislative and other measures as may be necessary to:
a ensure
that such expeditious preservation of traffic data is available regardless of
whether one or more service providers were involved in the transmission of that
communication; and
b ensure
the expeditious disclosure to the Party’s competent authority, or a person
designated by that authority, of a sufficient amount of traffic data to enable
the Party to identify the service providers and the path through which the
communication was transmitted.
2 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
Title 3 – Production order
Article 18
– Production order
1 Each
Party shall adopt such legislative and other measures as may be necessary to
empower its competent authorities to order:
a a
person in its territory to submit specified computer data in that person’s
possession or control, which is stored in a computer system or a computer-data
storage medium; and
b a
service provider offering its services in the territory of the Party to submit
subscriber information relating to such services in that service provider’s
possession or control.
2 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
3 For
the purpose of this article, the term “subscriber information” means any
information contained in the form of computer data or any other form that is
held by a service provider, relating to subscribers of its services other than
traffic or content data and by which can be established:
a the
type of communication service used, the technical provisions taken thereto and
the period of service;
b the
subscriber’s identity, postal or geographic address, telephone and other access
number, billing and payment information, available on the basis of the service
agreement or arrangement;
c any
other information on the site of the installation of communication equipment,
available on the basis of the service agreement or arrangement.
Title 4 – Search and seizure of stored computer data
Article 19
– Search and seizure of stored computer data
1 Each
Party shall adopt such legislative and other measures as may be necessary to
empower its competent authorities to search or similarly access:
a a
computer system or part of it and computer data stored therein; and
b a
computer-data storage medium in which computer data may be stored
in its
territory.
2 Each
Party shall adopt such legislative and other measures as may be necessary to
ensure that where its authorities search or similarly access a specific
computer system or part of it, pursuant to paragraph 1.a, and have grounds to
believe that the data sought is stored in another computer system or part of it
in its territory, and such data is lawfully accessible from or available to the
initial system, the authorities shall be able to expeditiously extend the
search or similar accessing to the other system.
3 Each
Party shall adopt such legislative and other measures as may be necessary to
empower its competent authorities to seize or similarly secure computer data
accessed according to paragraphs 1 or 2. These measures shall include the power
to:
a seize
or similarly secure a computer system or part of it or a computer-data storage
medium;
b make
and retain a copy of those computer data;
c maintain
the integrity of the relevant stored computer data;
d render
inaccessible or remove those computer data in the accessed computer system.
4 Each
Party shall adopt such legislative and other measures as may be necessary to
empower its competent authorities to order any person who has knowledge about
the functioning of the computer system or measures applied to protect the
computer data therein to provide, as is reasonable, the necessary information,
to enable the undertaking of the measures referred to in paragraphs 1 and 2.
5 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
Title 5 – Real-time collection of computer data
Article 20
– Real-time collection of traffic data
1 Each
Party shall adopt such legislative and other measures as may be necessary to
empower its competent authorities to:
a collect
or record through the application of technical means on the territory of that
Party, and
b compel
a service provider, within its existing technical capability:
i to
collect or record through the application of technical means on the territory
of that Party; or
ii to
co-operate and assist the competent authorities in the collection or recording
of,
traffic
data, in real-time, associated with specified communications in its territory
transmitted by means of a computer system.
2 Where
a Party, due to the established principles of its domestic legal system, cannot
adopt the measures referred to in paragraph 1.a, it may instead adopt
legislative and other measures as may be necessary to ensure the real-time
collection or recording of traffic data associated with specified
communications transmitted in its territory, through the application of
technical means on that territory.
3 Each
Party shall adopt such legislative and other measures as may be necessary to
oblige a service provider to keep confidential the fact of the execution of any
power provided for in this article and any information relating to it.
4 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
Article 21
– Interception of content data
1 Each
Party shall adopt such legislative and other measures as may be necessary, in
relation to a range of serious offences to be determined by domestic law, to
empower its competent authorities to:
a collect
or record through the application of technical means on the territory of that
Party, and
b compel
a service provider, within its existing technical capability:
i to
collect or record through the application of technical means on the territory
of that Party, or
ii to
co-operate and assist the competent authorities in the collection or recording
of,
content
data, in real-time, of specified communications in its territory transmitted by
means of a computer system.
2 Where
a Party, due to the established principles of its domestic legal system, cannot
adopt the measures referred to in paragraph 1.a, it may instead adopt
legislative and other measures as may be necessary to ensure the real-time
collection or recording of content data on specified communications in its
territory through the application of technical means on that territory.
3 Each
Party shall adopt such legislative and other measures as may be necessary to
oblige a service provider to keep confidential the fact of the execution of any
power provided for in this article and any information relating to it.
4 The
powers and procedures referred to in this article shall be subject to Articles
14 and 15.
Section 3
– Jurisdiction
Article 22
– Jurisdiction
1 Each
Party shall adopt such legislative and other measures as may be necessary to
establish jurisdiction over any offence established in accordance with Articles
2 through 11 of this Convention, when the offence is committed:
a in
its territory; or
b on
board a ship flying the flag of that Party; or
c on
board an aircraft registered under the laws of that Party; or
d by
one of its nationals, if the offence is punishable under criminal law where it
was committed or if the offence is committed outside the territorial
jurisdiction of any State.
2 Each
Party may reserve the right not to apply or to apply only in specific cases or
conditions the jurisdiction rules laid down in paragraphs 1.b through 1.d of
this article or any part thereof.
3 Each
Party shall adopt such measures as may be necessary to establish jurisdiction
over the offences referred to in Article 24, paragraph 1, of this Convention,
in cases where an alleged offender is present in its territory and it does not
extradite him or her to another Party, solely on the basis of his or her
nationality, after a request for extradition.
4 This
Convention does not exclude any criminal jurisdiction exercised by a Party in
accordance with its domestic law.
5 When
more than one Party claims jurisdiction over an alleged offence established in
accordance with this Convention, the Parties involved shall, where appropriate,
consult with a view to determining the most appropriate jurisdiction for
prosecution.
Chapter III – International
co-operation
Section 1
– General principles
Title 1 – General principles relating to international
co-operation
Article 23
– General principles relating to international co-operation
The
Parties shall co-operate with each other, in accordance with the provisions of
this chapter, and through the application of relevant international instruments
on international co-operation in criminal matters, arrangements agreed on the
basis of uniform or reciprocal legislation, and domestic laws, to the widest
extent possible for the purposes of investigations or proceedings concerning
criminal offences related to computer systems and data, or for the collection
of evidence in electronic form of a criminal offence.
Title 2 – Principles relating to extradition
Article 24
– Extradition
1 a. This
article applies to extradition between Parties for the criminal offences
established in accordance with Articles 2 through 11 of this Convention,
provided that they are punishable under the laws of both Parties concerned by
deprivation of liberty for a maximum period of at least one year, or by a more
severe penalty.
b. Where
a different minimum penalty is to be applied under an arrangement agreed on the
basis of uniform or reciprocal legislation or an extradition treaty, including
the European Convention on Extradition (ETS No. 24), applicable between two or
more parties, the minimum penalty provided for under such arrangement or treaty
shall apply.
2 The
criminal offences described in paragraph 1 of this article shall be deemed to
be included as extraditable offences in any extradition treaty existing between
or among the Parties. The Parties undertake to include such offences as
extraditable offences in any extradition treaty to be concluded between or
among them.
3 If
a Party that makes extradition conditional on the existence of a treaty
receives a request for extradition from another Party with which it does not
have an extradition treaty, it may consider this Convention as the legal basis
for extradition with respect to any criminal offence referred to in paragraph 1
of this article.
4 Parties
that do not make extradition conditional on the existence of a treaty shall
recognise the criminal offences referred to in paragraph 1 of this article as
extraditable offences between themselves.
5 Extradition
shall be subject to the conditions provided for by the law of the requested
Party or by applicable extradition treaties, including the grounds on which the
requested Party may refuse extradition.
6 If
extradition for a criminal offence referred to in paragraph 1 of this article
is refused solely on the basis of the nationality of the person sought, or
because the requested Party deems that it has jurisdiction over the offence,
the requested Party shall submit the case at the request of the requesting
Party to its competent authorities for the purpose of prosecution and shall
report the final outcome to the requesting Party in due course. Those
authorities shall take their decision and conduct their investigations and
proceedings in the same manner as for any other offence of a comparable nature
under the law of that Party.
7 a. Each
Party shall, at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, communicate to the Secretary
General of the Council of Europe the name and address of each authority
responsible for making or receiving requests for extradition or provisional
arrest in the absence of a treaty.
b. The
Secretary General of the Council of Europe shall set up and keep updated a
register of authorities so designated by the Parties. Each Party shall ensure
that the details held on the register are correct at all times.
Title 3 – General principles relating to mutual assistance
Article 25
– General principles relating to mutual assistance
1 The
Parties shall afford one another mutual assistance to the widest extent possible
for the purpose of investigations or proceedings concerning criminal offences
related to computer systems and data, or for the collection of evidence in
electronic form of a criminal offence.
2 Each
Party shall also adopt such legislative and other measures as may be necessary
to carry out the obligations set forth in Articles 27 through 35.
3 Each
Party may, in urgent circumstances, make requests for mutual assistance or
communications related thereto by expedited means of communication, including
fax or e-mail, to the extent that such means provide appropriate levels of
security and authentication (including the use of encryption, where necessary),
with formal confirmation to follow, where required by the requested Party. The
requested Party shall accept and respond to the request by any such expedited
means of communication.
4 Except
as otherwise specifically provided in articles in this chapter, mutual
assistance shall be subject to the conditions provided for by the law of the
requested Party or by applicable mutual assistance treaties, including the
grounds on which the requested Party may refuse co-operation. The requested
Party shall not exercise the right to refuse mutual assistance in relation to
the offences referred to in Articles 2 through 11 solely on the ground that the
request concerns an offence which it considers a fiscal offence.
5 Where,
in accordance with the provisions of this chapter, the requested Party is
permitted to make mutual assistance conditional upon the existence of dual
criminality, that condition shall be deemed fulfilled, irrespective of whether
its laws place the offence within the same category of offence or denominate
the offence by the same terminology as the requesting Party, if the conduct
underlying the offence for which assistance is sought is a criminal offence
under its laws.
Article 26
– Spontaneous information
1 A
Party may, within the limits of its domestic law and without prior request,
forward to another Party information obtained within the framework of its own
investigations when it considers that the disclosure of such information might
assist the receiving Party in initiating or carrying out investigations or
proceedings concerning criminal offences established in accordance with this Convention
or might lead to a request for co-operation by that Party under this chapter.
2 Prior
to providing such information, the providing Party may request that it be kept
confidential or only used subject to conditions. If the receiving Party cannot
comply with such request, it shall notify the providing Party, which shall then
determine whether the information should nevertheless be provided. If the
receiving Party accepts the information subject to the conditions, it shall be
bound by them.
Title 4 – Procedures pertaining to mutual assistance
requests
in the absence of applicable international agreements
in the absence of applicable international agreements
Article 27
– Procedures pertaining to mutual assistance requests in the absence of
applicable international agreements
1 Where
there is no mutual assistance treaty or arrangement on the basis of uniform or
reciprocal legislation in force between the requesting and requested Parties,
the provisions of paragraphs 2 through 9 of this article shall apply. The
provisions of this article shall not apply where such treaty, arrangement or
legislation exists, unless the Parties concerned agree to apply any or all of
the remainder of this article in lieu thereof.
2 a. Each
Party shall designate a central authority or authorities responsible for
sending and answering requests for mutual assistance, the execution of such
requests or their transmission to the authorities competent for their
execution.
b. The central authorities shall
communicate directly with each other;
c. Each Party shall, at the time of
signature or when depositing its instrument of ratification, acceptance,
approval or accession, communicate to the Secretary General of the Council of
Europe the names and addresses of the authorities designated in pursuance of
this paragraph;
d. The Secretary General of the Council of
Europe shall set up and keep updated a register of central authorities
designated by the Parties. Each Party shall ensure that the details held on the
register are correct at all times.
3 Mutual
assistance requests under this article shall be executed in accordance with the
procedures specified by the requesting Party, except where incompatible with
the law of the requested Party.
4 The
requested Party may, in addition to the grounds for refusal established in
Article 25, paragraph 4, refuse assistance if:
a the
request concerns an offence which the requested Party considers a political
offence or an offence connected with a political offence, or
b it
considers that execution of the request is likely to prejudice its sovereignty,
security, ordre public or other essential interests.
5 The
requested Party may postpone action on a request if such action would prejudice
criminal investigations or proceedings conducted by its authorities.
6 Before
refusing or postponing assistance, the requested Party shall, where appropriate
after having consulted with the requesting Party, consider whether the request
may be granted partially or subject to such conditions as it deems necessary.
7 The
requested Party shall promptly inform the requesting Party of the outcome of
the execution of a request for assistance. Reasons shall be given for any
refusal or postponement of the request. The requested Party shall also inform
the requesting Party of any reasons that render impossible the execution of the
request or are likely to delay it significantly.
8 The
requesting Party may request that the requested Party keep confidential the
fact of any request made under this chapter as well as its subject, except to
the extent necessary for its execution. If the requested Party cannot comply
with the request for confidentiality, it shall promptly inform the requesting
Party, which shall then determine whether the request should nevertheless be
executed.
9 a. In
the event of urgency, requests for mutual assistance or communications related
thereto may be sent directly by judicial authorities of the requesting Party to
such authorities of the requested Party. In any such cases, a copy shall be
sent at the same time to the central authority of the requested Party through
the central authority of the requesting Party.
b. Any
request or communication under this paragraph may be made through the
International Criminal Police Organisation (Interpol).
c. Where
a request is made pursuant to sub-paragraph a. of this article and the
authority is not competent to deal with the request, it shall refer the request
to the competent national authority and inform directly the requesting Party
that it has done so.
d. Requests
or communications made under this paragraph that do not involve coercive action
may be directly transmitted by the competent authorities of the requesting
Party to the competent authorities of the requested Party.
e. Each
Party may, at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, inform the Secretary General
of the Council of Europe that, for reasons of efficiency, requests made under
this paragraph are to be addressed to its central authority.
Article 28
– Confidentiality and limitation on use
1 When
there is no mutual assistance treaty or arrangement on the basis of uniform or
reciprocal legislation in force between the requesting and the requested
Parties, the provisions of this article shall apply. The provisions of this
article shall not apply where such treaty, arrangement or legislation exists,
unless the Parties concerned agree to apply any or all of the remainder of this
article in lieu thereof.
2 The
requested Party may make the supply of information or material in response to a
request dependent on the condition that it is:
a kept
confidential where the request for mutual legal assistance could not be
complied with in the absence of such condition, or
b not
used for investigations or proceedings other than those stated in the request.
3 If
the requesting Party cannot comply with a condition referred to in paragraph 2,
it shall promptly inform the other Party, which shall then determine whether
the information should nevertheless be provided. When the requesting Party
accepts the condition, it shall be bound by it.
4 Any
Party that supplies information or material subject to a condition referred to
in paragraph 2 may require the other Party to explain, in relation to that
condition, the use made of such information or material.
Section 2
– Specific provisions
Title 1 – Mutual assistance regarding provisional measures
Article 29
– Expedited preservation of stored computer data
1 A
Party may request another Party to order or otherwise obtain the expeditious
preservation of data stored by means of a computer system, located within the
territory of that other Party and in respect of which the requesting Party
intends to submit a request for mutual assistance for the search or similar
access, seizure or similar securing, or disclosure of the data.
2 A
request for preservation made under paragraph 1 shall specify:
a the
authority seeking the preservation;
b the
offence that is the subject of a criminal investigation or proceedings and a
brief summary of the related facts;
c the
stored computer data to be preserved and its relationship to the offence;
d any
available information identifying the custodian of the stored computer data or
the location of the computer system;
e the
necessity of the preservation; and
f that
the Party intends to submit a request for mutual assistance for the search or
similar access, seizure or similar securing, or disclosure of the stored computer
data.
3 Upon
receiving the request from another Party, the requested Party shall take all
appropriate measures to preserve expeditiously the specified data in accordance
with its domestic law. For the purposes of responding to a request, dual
criminality shall not be required as a condition to providing such
preservation.
4 A
Party that requires dual criminality as a condition for responding to a request
for mutual assistance for the search or similar access, seizure or similar
securing, or disclosure of stored data may, in respect of offences other than
those established in accordance with Articles 2 through 11 of this Convention,
reserve the right to refuse the request for preservation under this article in
cases where it has reasons to believe that at the time of disclosure the
condition of dual criminality cannot be fulfilled.
5 In
addition, a request for preservation may only be refused if:
a the
request concerns an offence which the requested Party considers a political
offence or an offence connected with a political offence, or
b the
requested Party considers that execution of the request is likely to prejudice
its sovereignty, security, ordre public or other essential interests.
6 Where
the requested Party believes that preservation will not ensure the future
availability of the data or will threaten the confidentiality of or otherwise
prejudice the requesting Party’s investigation, it shall promptly so inform the
requesting Party, which shall then determine whether the request should
nevertheless be executed.
7 Any
preservation effected in response to the request referred to in paragraph 1
shall be for a period not less than sixty days, in order to enable the
requesting Party to submit a request for the search or similar access, seizure
or similar securing, or disclosure of the data. Following the receipt of such a
request, the data shall continue to be preserved pending a decision on that
request.
Article 30
– Expedited disclosure of preserved traffic data
1 Where,
in the course of the execution of a request made pursuant to Article 29 to
preserve traffic data concerning a specific communication, the requested Party
discovers that a service provider in another State was involved in the
transmission of the communication, the requested Party shall expeditiously
disclose to the requesting Party a sufficient amount of traffic data to
identify that service provider and the path through which the communication was
transmitted.
2 Disclosure
of traffic data under paragraph 1 may only be withheld if:
a the
request concerns an offence which the requested Party considers a political
offence or an offence connected with a political offence; or
b the
requested Party considers that execution of the request is likely to prejudice
its sovereignty, security, ordre public or other essential interests.
Title 2 – Mutual assistance regarding investigative powers
Article 31
– Mutual assistance regarding accessing of stored computer data
1 A
Party may request another Party to search or similarly access, seize or
similarly secure, and disclose data stored by means of a computer system
located within the territory of the requested Party, including data that has
been preserved pursuant to Article 29.
2 The
requested Party shall respond to the request through the application of
international instruments, arrangements and laws referred to in Article 23, and
in accordance with other relevant provisions of this chapter.
3 The
request shall be responded to on an expedited basis where:
a there
are grounds to believe that relevant data is particularly vulnerable to loss or
modification; or
b the
instruments, arrangements and laws referred to in paragraph 2 otherwise provide
for expedited co-operation.
Article 32
– Trans-border access to stored computer data with consent or where publicly
available
A Party
may, without the authorisation of another Party:
a access
publicly available (open source) stored computer data, regardless of where the
data is located geographically; or
b access
or receive, through a computer system in its territory, stored computer data
located in another Party, if the Party obtains the lawful and voluntary consent
of the person who has the lawful authority to disclose the data to the
Party through that computer system.
Article 33
– Mutual assistance regarding the real-time collection of traffic data
1 The
Parties shall provide mutual assistance to each other in the real-time
collection of traffic data associated with specified communications in their
territory transmitted by means of a computer system. Subject to the provisions
of paragraph 2, this assistance shall be governed by the conditions and
procedures provided for under domestic law.
2 Each
Party shall provide such assistance at least with respect to criminal offences
for which real-time collection of traffic data would be available in a similar
domestic case.
Article 34
– Mutual assistance regarding the interception of content data
The
Parties shall provide mutual assistance to each other in the real-time
collection or recording of content data of specified communications transmitted
by means of a computer system to the extent permitted under their applicable
treaties and domestic laws.
Title 3 – 24/7 Network
Article 35
– 24/7 Network
1 Each
Party shall designate a point of contact available on a twenty-four hour,
seven-day-a-week basis, in order to ensure the provision of immediate
assistance for the purpose of investigations or proceedings concerning criminal
offences related to computer systems and data, or for the collection of
evidence in electronic form of a criminal offence. Such assistance shall
include facilitating, or, if permitted by its domestic law and practice,
directly carrying out the following measures:
a the
provision of technical advice;
b the
preservation of data pursuant to Articles 29 and 30;
c the
collection of evidence, the provision of legal information, and locating of
suspects.
2 a.
A Party’s point of contact shall have the capacity to carry out communications
with the point of contact of another Party on an expedited basis.
b.
If the point of contact designated by a Party is not part of that Party’s
authority or authorities responsible for international mutual assistance or
extradition, the point of contact shall ensure that it is able to co-ordinate
with such authority or authorities on an expedited basis.
3 Each
Party shall ensure that trained and equipped personnel are available, in order
to facilitate the operation of the network.
Chapter IV – Final provisions
Article 36
– Signature and entry into force
1 This
Convention shall be open for signature by the member States of the Council of
Europe and by non-member States which have participated in its elaboration.
2 This
Convention is subject to ratification, acceptance or approval. Instruments of
ratification, acceptance or approval shall be deposited with the Secretary
General of the Council of Europe.
3 This
Convention shall enter into force on the first day of the month following the
expiration of a period of three months after the date on which five States,
including at least three member States of the Council of Europe, have expressed
their consent to be bound by the Convention in accordance with the provisions
of paragraphs 1 and 2.
4 In
respect of any signatory State which subsequently expresses its consent to be
bound by it, the Convention shall enter into force on the first day of the
month following the expiration of a period of three months after the date of
the expression of its consent to be bound by the Convention in accordance with
the provisions of paragraphs 1 and 2.
Article 37
– Accession to the Convention
1 After
the entry into force of this Convention, the Committee of Ministers of the
Council of Europe, after consulting with and obtaining the unanimous consent of
the Contracting States to the Convention, may invite any State which is not a
member of the Council and which has not participated in its elaboration to
accede to this Convention. The decision shall be taken by the majority provided
for in Article 20.d. of the Statute of the Council of Europe and by the
unanimous vote of the representatives of the Contracting States entitled to sit
on the Committee of Ministers.
2 In
respect of any State acceding to the Convention under paragraph 1 above, the
Convention shall enter into force on the first day of the month following the
expiration of a period of three months after the date of deposit of the
instrument of accession with the Secretary General of the Council of Europe.
Article 38
– Territorial application
1 Any
State may, at the time of signature or when depositing its instrument of
ratification, acceptance, approval or accession, specify the territory or
territories to which this Convention shall apply.
2 Any
State may, at any later date, by a declaration addressed to the Secretary
General of the Council of Europe, extend the application of this Convention to
any other territory specified in the declaration. In respect of such territory
the Convention shall enter into force on the first day of the month following
the expiration of a period of three months after the date of receipt of the
declaration by the Secretary General.
3 Any
declaration made under the two preceding paragraphs may, in respect of any territory
specified in such declaration, be withdrawn by a notification addressed to the
Secretary General of the Council of Europe. The withdrawal shall become
effective on the first day of the month following the expiration of a period of
three months after the date of receipt of such notification by the Secretary
General.
Article 39
– Effects of the Convention
1 The
purpose of the present Convention is to supplement applicable multilateral or
bilateral treaties or arrangements as between the Parties, including the
provisions of:
– the
European Convention on Extradition, opened for signature in Paris, on
13 December 1957 (ETS No. 24);
– the
European Convention on Mutual Assistance in Criminal Matters, opened for
signature in Strasbourg, on 20 April 1959 (ETS No. 30);
– the
Additional Protocol to the European Convention on Mutual Assistance in Criminal
Matters, opened for signature in Strasbourg, on 17 March 1978 (ETS
No. 99).
2 If
two or more Parties have already concluded an agreement or treaty on the
matters dealt with in this Convention or have otherwise established their
relations on such matters, or should they in future do so, they shall also be
entitled to apply that agreement or treaty or to regulate those relations
accordingly. However, where Parties establish their relations in respect of the
matters dealt with in the present Convention other than as regulated therein,
they shall do so in a manner that is not inconsistent with the Convention’s
objectives and principles.
3 Nothing
in this Convention shall affect other rights, restrictions, obligations and
responsibilities of a Party.
Article 40
– Declarations
By a
written notification addressed to the Secretary General of the Council of
Europe, any State may, at the time of signature or when depositing its
instrument of ratification, acceptance, approval or accession, declare that it
avails itself of the possibility of requiring additional elements as provided
for under Articles 2, 3, 6 paragraph 1.b, 7, 9 paragraph 3, and 27, paragraph
9.e.
Article 41
– Federal clause
1 A
federal State may reserve the right to assume obligations under Chapter II of
this Convention consistent with its fundamental principles governing the
relationship between its central government and constituent States or other
similar territorial entities provided that it is still able to co-operate under
Chapter III.
2 When
making a reservation under paragraph 1, a federal State may not apply the terms
of such reservation to exclude or substantially diminish its obligations to
provide for measures set forth in Chapter II. Overall, it shall provide for a
broad and effective law enforcement capability with respect to those measures.
3 With
regard to the provisions of this Convention, the application of which comes
under the jurisdiction of constituent States or other similar territorial
entities, that are not obliged by the constitutional system of the federation
to take legislative measures, the federal government shall inform the competent
authorities of such States of the said provisions with its favourable opinion,
encouraging them to take appropriate action to give them effect.
Article 42
– Reservations
By a
written notification addressed to the Secretary General of the Council of
Europe, any State may, at the time of signature or when depositing its
instrument of ratification, acceptance, approval or accession, declare that it
avails itself of the reservation(s) provided for in Article 4, paragraph 2,
Article 6, paragraph 3, Article 9, paragraph 4, Article 10, paragraph 3,
Article 11, paragraph 3, Article 14, paragraph 3, Article 22, paragraph 2,
Article 29, paragraph 4, and Article 41, paragraph 1. No other reservation may
be made.
Article 43
– Status and withdrawal of reservations
1 A
Party that has made a reservation in accordance with Article 42 may wholly or
partially withdraw it by means of a notification addressed to the Secretary
General of the Council of Europe. Such withdrawal shall take effect on the date
of receipt of such notification by the Secretary General. If the notification
states that the withdrawal of a reservation is to take effect on a date
specified therein, and such date is later than the date on which the
notification is received by the Secretary General, the withdrawal shall take
effect on such a later date.
2 A
Party that has made a reservation as referred to in Article 42 shall withdraw
such reservation, in whole or in part, as soon as circumstances so permit.
3 The
Secretary General of the Council of Europe may periodically enquire with
Parties that have made one or more reservations as referred to in Article 42 as
to the prospects for withdrawing such reservation(s).
Article 44
– Amendments
1 Amendments
to this Convention may be proposed by any Party, and shall be communicated by
the Secretary General of the Council of Europe to the member States of the
Council of Europe, to the non-member States which have participated in the
elaboration of this Convention as well as to any State which has acceded to, or
has been invited to accede to, this Convention in accordance with the
provisions of Article 37.
2 Any
amendment proposed by a Party shall be communicated to the European Committee
on Crime Problems (CDPC), which shall submit to the Committee of Ministers its
opinion on that proposed amendment.
3 The
Committee of Ministers shall consider the proposed amendment and the opinion
submitted by the CDPC and, following consultation with the non-member States
Parties to this Convention, may adopt the amendment.
4 The
text of any amendment adopted by the Committee of Ministers in accordance with
paragraph 3 of this article shall be forwarded to the Parties for acceptance.
5 Any
amendment adopted in accordance with paragraph 3 of this article shall come
into force on the thirtieth day after all Parties have informed the Secretary
General of their acceptance thereof.
Article 45
– Settlement of disputes
1 The
European Committee on Crime Problems (CDPC) shall be kept informed regarding
the interpretation and application of this Convention.
2 In
case of a dispute between Parties as to the interpretation or application of
this Convention, they shall seek a settlement of the dispute through
negotiation or any other peaceful means of their choice, including submission
of the dispute to the CDPC, to an arbitral tribunal whose decisions shall be
binding upon the Parties, or to the International Court of Justice, as agreed
upon by the Parties concerned.
Article 46
– Consultations of the Parties
1 The
Parties shall, as appropriate, consult periodically with a view to
facilitating:
a the
effective use and implementation of this Convention, including the
identification of any problems thereof, as well as the effects of any
declaration or reservation made under this Convention;
b the
exchange of information on significant legal, policy or technological
developments pertaining to cybercrime and the collection of evidence in
electronic form;
c consideration
of possible supplementation or amendment of the Convention.
2 The
European Committee on Crime Problems (CDPC) shall be kept periodically informed
regarding the result of consultations referred to in paragraph 1.
3 The
CDPC shall, as appropriate, facilitate the consultations referred to in
paragraph 1 and take the measures necessary to assist the Parties in their
efforts to supplement or amend the Convention. At the latest three years after
the present Convention enters into force, the European Committee on Crime
Problems (CDPC) shall, in co-operation with the Parties, conduct a review of
all of the Convention’s provisions and, if necessary, recommend any appropriate
amendments.
4 Except
where assumed by the Council of Europe, expenses incurred in carrying out the
provisions of paragraph 1 shall be borne by the Parties in the manner to be
determined by them.
5 The
Parties shall be assisted by the Secretariat of the Council of Europe in
carrying out their functions pursuant to this article.
Article 47
– Denunciation
1 Any
Party may, at any time, denounce this Convention by means of a notification
addressed to the Secretary General of the Council of Europe.
2 Such
denunciation shall become effective on the first day of the month following the
expiration of a period of three months after the date of receipt of the notification
by the Secretary General.
Article 48
– Notification
The
Secretary General of the Council of Europe shall notify the member States of
the Council of Europe, the non-member States which have participated in the
elaboration of this Convention as well as any State which has acceded to, or
has been invited to accede to, this Convention of:
a any
signature;
b the
deposit of any instrument of ratification, acceptance, approval or accession;
c any
date of entry into force of this Convention in accordance with Articles 36
and 37;
d any
declaration made under Article 40 or reservation made in accordance with
Article 42;
e any
other act, notification or communication relating to this Convention.
In witness
whereof the undersigned, being duly authorised thereto, have signed this
Convention.
Done at
Budapest, this 23rd day of November 2001, in English and in French, both texts
being equally authentic, in a single copy which shall be deposited in the
archives of the Council of Europe. The Secretary General of the Council of
Europe shall transmit certified copies to each member State of the Council of
Europe, to the non-member States which have participated in the elaboration of
this Convention, and to any State invited to accede to it.
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